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Secondary victim claims struck out

On 13 January 2021, judgment was handed down in the three conjoined appeals in Paul v The Royal Wolverhampton NHS Trust, Polmear v Royal Cornwall Hospital NHS Trust and Purchase v Ahmed, which were heard by the Court of Appeal (the Master of the Rolls, the Vice Chancellor and Lady Justice Nicola Davies) before Christmas.

Charlotte Jones appeared for the Defendants in the three cases, led by Charles Bagot QC.

The cases concern the recoverability of damages by secondary victims in circumstances where their loved one, who had been the victim of clinical negligence, died suddenly and shockingly at a later date and they suffered psychiatric injury as a result of having been present to witness that. The Court of Appeal held that:

  • The five elements required to establish legal proximity in secondary victim cases apply as much to clinical negligence cases as they do to in accident cases.
  • For there to be sufficient proximity between a secondary victim and the Defendant to allow a claim for psychiatric injury, the sudden horrifying event cannot be later in time than the negligence.
  • If the negligence and the sudden shocking event properly analysed are in fact part of one seamless event, as they were held to be in Walters v North Glamorgan NHS Trust (2002), the sufficient proximity element may be satisfied.
  • The Court of Appeal’s previous judgment in Taylor v A. Novo (UK) Ltd (2013) is binding authority for the proposition that no claim can be brought in respect of psychiatric injury caused by a second event removed in time from the original negligence, accident or a first horrific event.
  • It is for the Supreme Court to decide whether to depart from the law as stated in Taylor v A. Novo, which could not be departed from by this court.

The Claimants have applied for permission to appeal to the Supreme Court.

A link to the judgment is here [1].

Charlotte Jones was instructed by Browne Jacobson LLP and Bevan Brittan LLP on behalf of the successful Defendants.

 

[1] [2022] EWCA Civ 12



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